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Costa  Rica-  Panama  Arbitration 


MEMORANDUM 


ON 


UTI  POSSIDETIS 


BY 


JOHN  BA55E,TT  MOORL 


Hamilton  Fish  Professor  of  International  Law  and  Diplomacy,  Columbia  University, 

New  York;  Member  of  the  Permanent  Court  of  Arbitration  of  the  Hasrue; 

Member  of  the  Institute  of  International  Law;  Author  of  a 

History  and  Digrest  of  International  Arbitrations, 

of  a  Digest  of  International  Law,  etc. 


1913. 
The  Commonwealth  Co.,  Printers, 
ROSSLYN,  Va.,  U.  S.  A. 


UTI   POSSIDETIS 


CONTENTS. 

I.  Origin  of  the  Term  Uti  Possidetis. 
ir.  Meaning  in  International  Law. 

III.  Application  of  Principle  to  International  Bound- 

aries. 

IV.  The    Principle    of    Uti    Possidetis    in    Latin- 

America. 

V.  Its  Application  in  Spanish- America. 

1.  Origin  of  Spanish- American  States. 

2.  Absence  of  Definite  Boundaries. 

3.  Uti  Possidetis  of  the  Date  of  Independence. 

4.  The  "Uti  Possidetis  Juris  of  1810." 

VI.  Question  Between  Costa  Rica  and  Panama. 


UTI  POSSIDETIS 


UTI  POSSIDETIS. 


In  the  discussion  of  the  pending  question,  much 
prominence  has  at  times  been  given  to  the  subject  of 
Uti  possidetis.  Especially  is  this  the  case  with  the 
Arbitration  before  the  President  of  France,  in  which 
the  representatives  of  Colombia  (predecessor  of  Pan- 
ama) endowed  the  phrase  with  an  injportance  alto- 
gether factitious,  making  it,  indeed,  in  the  form  of 
the  Uti  possidetis  juris,  the  very  foundation  of  their 
argument.  This  was  all  the  more  remarkable,  because 
the  words  Uti  possidetis,  as  we  shall  hereafter  more 
fully  show,  nowhere  occur  in  the  treaties  between 
the  two  countries.  Nevertheless,  the  use  which  has 
been  made  of  the  phrase  renders  it  necessary  to  pre- 
sent the  matter  in  its  various  aspects. 

I.  Obigin  of  the  Term  Uti  PossmETis. 

The  term  Uti  possidetis  is  derived  from  the  Roman 
Law,  in  which  it  designated  an  interdict  of  the  Praetor, 
by  which  the  disturbance  of  the  existing  state  of  pos- 
session of  immovables,  as  between  two  individuals, 
was  forbidden.  As  to  the  precise  origin  of  the  pro- 
cess, which  lay  outside  the  domain  of  the  regular 
legis  actiones,  writers  are  not  agreed.  They  also  dif- 
fer as  to  whether  protection  of  the  better  right  or 
prevention  of  a  breach  of  the  peace  was  the  primary 
ground  of  the  magistrate's  intervention.  Niebuhr, 
whose  view  has  been  widely  accepted,  finds  the  origin 
of  the  procedure  in  the  measures  resorted  to  for  pro- 
tecting the  occupants  of  public  lands,  who,  although 


6  MEMORANDUM 

they  could  not  show  an  original  title  and  therefore 
could  not  maintain  an  action  founded  on  ownership, 
received  in  their  occupancy  the  recognition  and  sanc- 
tion of  the  State.^  To  the  possessor  there  was  awarded, 
on  the  strength  of  his  possession,  the  right  to  be  free 
from  disturbance  by  his  adversary.  To  this  extent  the 
interdict  served,  in  effect,  in  place  of  a  regular  title. 
In  course  of  time,  however,  the  interdict  came  to  be 
used  as  an  ancillary  process,  for  the  purpose  of  decid- 
ing which  of  the  parties,  as  possessor,  should  have 
the  advantage  of  standing  on  the  defensive  in  a  litiga- 
tion to  determine  ownership.  The  formula  employed 
by  the  Praetor  was:  Uti  eas  aedes,  quibus  de  agitur, 
nee  vi  nee  clam  nee  preeario  alter  ah  altera  possidetis, 
quominus  ita  possideatis,  vim  fieri  veto. 

*'As  you  possess  the  house  in  question,  the 
one  not  having  obtained  it  by  force,  clandestine- 
ly, or  by  permission  from  the  other,  I  forbid 
force  to  be  used  to  the  end  that  you  may  not 
continue  so  to  possess  it." 

Or,  as  translated  by  an  eminent  authority: 

"Whichever  party  has  possession  of  the 
house  in  question,  without  violence,  clandestinity 
or  permission  in  respect  of  the  adversary,  the 
violent  disturbance  of  his  possession  I  pro- 
hibit."^ 

The  right  of  the  possessor  was  not  affected  if  his 
possession  was  begun  by  violence,  clandestinely  or 
by  permission  as  regards  any  other  person  than  the 

'  Muirhead,   Historical   Introduction  to  the   Private  Law   of   Rome, 
2nd  ed.,  1899,  p.  206. 
*Poste,  Gaii  Institutionum,  ed.  1871,  p.  505. 


UTI   POSSIDETIS  7 

adversary;  and,  as  to  the  latter,  there  was  simply  a 
prohibition  to  disturb  the  status  quo,  even  the  ques- 
tion as  to  which  of  the  parties  was  in  possession  and 
which  was  forbidden  to  interfere  being  left  open.' 

*'In  claiming/'  says  Sohm,  ''an  interdict,  the  juris- 
tic possessor  claims,  at  the  same  time,  a  declaration 
recognizing  his  juristic  possession,  discontinuance  of 
the  disturbance,  and  damages  for  the  disturbance  which 
has  already  taken  place.  No  one,  however,  is  deemed 
a  juristic  possessor  for  purposes  of  this  interdict,  un- 
less his  juristic  possession  was  acquired  nee  vi  nee 
elam  nee  precario  ah  adversaria.  A  person  who  has 
acquired  juristic  possession  from  his  adversary  in 
the  suit  either  vi  (i.  e.  by  force),  or  clam  (i.  e.  clandes- 
tinely, anticipating  the  opposition  of  his  adversary 
and  secretly  evading  it),  or  precario  (i.  e.  on  terms 
of  revocation  at  will,  no  binding  transaction  being 
concluded  with  the  grantor),  is  not  held  to  have  juristic 
possession  for  purposes  of  the  possessory  suit,  the 
juristic  possession  being  deemed,  on  the  contrary,  to 
vest  in  the  adversary  from  whom  the  thing  was  ac- 
quired vi,  clam,  or  precario."* 

*'The  interdicts  Uti  possidetis  and  Utrubi  are," 
says  Moyle,  speaking  of  the  time  of  Justinian,  "for 
retaining  possession,  and  are  employed  when  two 
parties  claim  ownership  in  anything,  in  order  to  de- 
termine which  shall  be  defendant  and  which  plaintiff; 
*  *  *  Where  the  dispute  relates  to  the  possession 
of  land  or  buildings,  the  interdict  called  Uti  possidetis 
is  employed;  *  *  *  In  Uti  possidetis  the  party 
in  possession  at  the  issue  of  the  interdict  was  the  win- 


•Muirhead,  p.  347. 

*1  Sohm,  Institutes  of  Roman  Law  (1910),  p.  310. 


8  MEMORANDUM 

ner,  provided  he  had  not  obtained  that  possession  from 
his  adversary  by  force,  or  clandestinely,  or  by  per- 
mission; whether  he  had  obtained  it  from  some  one 
else  in  any  of  these  modes  was  immaterial."  (Moyle, 
Imperatoris  lustiniani  Institutionum,  1883,  pp.  201- 
204.) 

The  substance  of  the  decree  is  embraced  in  the  words 
Uti  possidetis,  ita  possideatis:  **As  you  possess,  so 
may  you  possess."  The  interdict  was  briefly  desig- 
nated as  Uti  possidetis. 

n.  Meaning  in  International  Law. 

From  the  Roman  law,  the  phrase  Uti  possidetis  was 
transferred  to  the  works  on  International  Law,  but 
without  any  of  the  technical  significance  and  limita- 
tions which  inhered  in  the  Roman  interdict.  For  this 
reason  JBluntschli  has  criticised  the  use  of  the  phrase 
hyi-writers  on  International  Law  as  inaccurate,  since 
it  denotes,  in  International  Law,  (1)  not  possession 
underjprivate  law  but  territorial  sovereignty,  and  (2) 
not  merely  the  recognition  of  possession  but  a  defini- 
.  tive  status.*^  The  distinctions  pointed  out  by  the  learned 
German  publicist  are  universally  admitted  to  be  sound, 
but  his  criticism  of  the  use  of  the  phrase  in  Interna- 
tional Law  is  not  necessarily  to  be  accepted,  since  it 
literally  and  appropriately  conveys  in  this  relation  the 
precise  meaning  which  it  is  intended  to  give,  [in  In- 
ternational Law,  the  phrase  no  longer  referred  to  a 
judicial  or  quasi-judicial  procedure,  resulting  in  the 
interdict  of  a  supreme  legal  authority.  Its  fundamental 
object,  in  private  law,  of  preventing  and  invalidating 
the  use  of  force,  no  longer  existed ;  for,  by  International 
Law,  the  use  of  force  was  lawful  and  the  right  of  conquest 

•  Bluntschli,  Le  Droit  International  Codifie,  ed.  of  1895,  Art.  715. 


UTI   POSSIDETIS  9 

was  recognized.  Its  entire  meaning  and  application  in 
International  Law  were  aptly  summed  up  and  ex- 
pressed in  the  words  Uti  possidetis,  ita  possideatis, 
*^As  you  possess,  so  may  joujpossess. ' ' 

But,  for  the  very  reason  that,  in  International  Law, 
which  lacked  a  supreme  political  authority  and  a  su- 
preme judicial  jurisdiction,  the  use  of  force  was  law- 
ful and  the  right  of  conquest  was  recognized,  the  prin- 
ciple of  Uti  possidetis,  ra  the  sense  indicated,  was  a 
rule  of  peace;  since  it  furnished  a  date  from  which 
rights  were  to  be  reckoned,  without  recurring  to  prior 
controversies  and  hazarding  the  consequences  of  their 
renewal. 

''The  accomplished  fact,"  declares  Rivier,  ''has,  in 
the  life  of  nations  and  in  the  law  of  nations,  a  capital 
and  preponderant  importance;  it  is  the  generator  of 
right.  In  a  stronger  sense  than  in  private  law,  we  may 
apply  here  the  principle  expressed  by  Paul  in  these 
terms:  'Whoever  the  possessor  may  be,  by  this  fact, 
because  he  is  the  possessor,  he  has  more  right  than 
he  who  does  not  possess.'  (Law  II,  Digest,  Uti  possi- 
detis, 43, 17.)  Says  Bynkershoek:  'In  all  public  causes 
the  principle  prevails:  Uti  possidetis,  ita  possideatis/ 
(Quaestionum  juris  publici  [1737],  Lib.  II,  Cap.  Ill, 
p.  206.)  "6 

Again : 

"The  basis  of  the  negotiations  [for  peace]  is 
•  given  either  by  the  uti  possidetis,  or  statu  quo 

post  helium,  or  by  the  statu  quo  ante  helium. 
The  latter  basis  will  not  be  presumed,  the  war 
having  suppressed  the  former  state  of  things 
and  created  a  new  state  of  things.    We  know  the 

'  Rivier,  Principes  du  Droit  des  Gens,  I,  55. 


10  MEMORANDUM 

important  role  which  belongs  in  the  law  of  na- 
tions to  the  accomplished  fact  and  to  posses- 
sion. '  '^ 

''The  treaty  of  peace,"  says  Wheaton,  "leaves 
everything  in  the  state  in  which  it  found  it,  unless  there 
be  some  express  stipulation  to  the  contrary.  The  exist- 
ing state  of  possession  is  maintained,  except  so  far  as 
altered  by  the  terms  of  the  treaty.  If  nothing  be  said 
about  the  conquered  country  or  places,  they  remain 
with  the  conqueror,  and  his  title  cannot  afterwards  be 
called  in  question.  During  the  continuance  of  the  war, 
the  conqueror  in  possession  has  only  a  usufructuary 
right,  and  the  latent  title  of  the  former  sovereign  con- 
tinues, until  the  treaty  of  peace,  by  its  silent  operation, 
or  express  provisions,  extinguishes  his  title  forever. 
*  *  *  The  uti  possidetis  is  the  basis  of  every  treaty 
of  peace,  unless  the  contrary  be  expressly  stipulated. '  '^ 
^*Ks  between  the  belligerent  powers  themselves," 
says  a  recent  writer,  **it  is  held  that  the  conclusion 
^f  peace  legalizes  the  state  of  possession  existing  at 
the  moment,  unless  special  stipulations  to  the  contrary 
/are  contained  in  the  treaty.  This  is  called  the  prin- 
ciple of  Uti  possidetis,  and  it  is  of  very  wide  and  far- 
'eaching  application.  *  *  *  Arrangements  that 
seem  at  first  sight  to  be  pedantic  in  their  minuteness 
are  often  necessary  to  carry  out  the  intentions  of  the  - 
parties  in  the  face  of  the  rule  that,  when  there  are  no 
express  stipulations  to  the  contrary,  the  principle  of 
uti  possidetis  prevails."® 

'  Id.  II.,  450. 

'Wheaton's  Elements,  Lawrence's  ed.  1863,  pp.  878-882,  886. 

'Lawrence.  Principles  of  Int.  Law  (4th  ed.  1910),  pp.  571,  572.  See, 
to  the  same  effect.  Walker,  Science  of  Int.  Law,  372 ;  Ferguson's  Manual 
of  Int.  Law.  IT..  5.59;  Halleck.  Int.  Law,  Baker's  ed.  (1908),  I.,  345;  II., 
537;  Oppenheim.  Int.  Law  (1906),  II.,  287. 


UTI  POSSIDETIS  II 

Finally,  we  may  quote  the  words  of  a  distinguished 
Argentine  publicist,  who  in  turn  cites  an  eminent  pub- 
licist of  Chile,  as  follows: 

"The  peace,  when  the  treaty  contains  no  con- 
trary stipulation,  either  does  not  change  the 
situation  in  which  things  are  found  at  the  mo- 
ment of  its  conclusion,  or  re-establishes  them 
in  the  same  state  as  before  the  war.  In  the  first 
case,  if  nothing  is  said  on  the  subject,  the  coun- 
tries and  places  occupied  and  conquered  remain 
in  the  power  of  the  party  who  occupies  them,  by 
the  application  of  the  rule  uti  possidetis.  •  ♦  • 
According  to  Bello,  'the  clause  which  replaces 
things  in  the  state  anterior  to  the  war,  in  statu 
quo  ante  helium,  has  relation  solely  to  terri- 
torial properties  and  is  limited  to  changes  which 
the  war  has  produced  in  their  natural  posses- 
•  sion;  the  basis  of  actual  possession,  uti  possi- 
detis, relates  on  the  contrary  to  the  epoch  indi- 
cated in  the  treaty  of  peace,  or,  in  default  of 
any,  to  the  date  of  the  treaty  itself."**' 

m.  Application  of  Principle  to  International 
Boundaries. 

Not  only  in  cases  where,  as  the  result  of  war,  pos- 
session of  territory  has  been  obtained  by  force,  but  also 
in  cases  where,  as  the  result  of  discovery,  exploration 
and  settlement,  possession  has  been  acquired  by  occu- 
pation, the  principle  of  uti  possidetis,  as  understood 
in  International  Law,  has  played  an  important  and 
often  a  decisive  part.  This  has  been  so  of  necessity. 
Within  the  past  four  hundred  years  vast  territories, 
imperial  in  extent,  have  been  added  to  the  domain  of 
civilization.  In  the  process  of  their  absorption,  the  colo- 
nizinsr  powers  of  Europe  entered  into  active  competition. 

"■Calvo,  Droit  Int.  (ed.  1896),  §3150.  V.  380. 


12  ME^^IORANDUM 

Settlements  were  formed  and  titles  were  established; 
but,  even  where  the  titles  were  acknowledged,  the 
boundaries  as  between  adjacent  proprietors  remained 
to  be  determined.  The  task  of  delimitation  was  diffi- 
cult and  complicated.  Not  only  was  the  process  of 
occupation  gradual,  but  conflicting  rules  were  set  up 
as  to  the  extent  to  which  the  occupation  of  a  certain 
place  gave  a  right  of  possession.  In  the  course  of 
time,  as  effective  control  was  established  and  the  set- 
tlements of  different  proprietors  approached  each 
other,  the  question  of  boundaries,  perhaps  originally 
of  slight  practical  importance,  became  acute.  On  what 
principle  was  the  difficulty  to  be  solved?  In_lha-last, 
an^ly^is_the  contestants  often  were  obliged,  in  the_ 
midst  of  conflicting  and  irrecohcilable  claims  of  right, 
to  accept  as  the  only  possible  solution  the  principle 
of  actual, possession — the  uti  possidetis. 

In  saying  this,  however,  it  is  by  no  means  intended 
to  suggest  that,  in  adopting  the  principle  of  uti  possi- 
detis, the  contracting  parties  always  supposed  either 
that  they  had  found  a  perfect  solvent  of  their  diffi- 
culties or  that  they  had  excluded  from  consideration 
titles  founded  on  legal  documents  or  dispensed  with 
the  necessity  of  recurring  to  legal  principles.  Pos- 
session itself  was  often  controverted  both  in  the  actual 
and  the  legal  sense.  Facts  alleged  on  one  side  were 
denied  on  the  other,  and,  even  had  they  been  admitted, 
different  views  were  entertained  as  to  their  effects, 
especially  as  to  the  extent  to  which  possession  could 
properly  be  said  to  have  been  acquired.  For  example. 
Great  Britain,  in  the  controversies  leading  up  to  the 
Seven  Years'  War,  contended  that  she  had  a  right, 
founded  on  the  discovery  and  possession  of  certain  por- 


UTI   POSSIDETIS  13 

tions  of  the  Atlantic  Coast,  to  extend  her  sovereignty 
by  given  latitudes  to  the  Pacific,  i.  e,,  from  sea  to  sea. 
This  claim  was  opposed  by  France  and  Spain,  and  was 
abandoned  by  Great  Britain  in  the  treaty  of  1763,  which 
established  the  Mississippi  as  the  western  bomidary 
of  her  possessions.  The  United  States,  on  the  other 
hand,  in  the  discussions  with  Spain  as  to  boundaries, 
in  1805,  laid  down  the  principle  that  when  a  nation 
"takes  possession  of  any  extensive  seacoast,  that  pos- 
session is  understood  as  extending  into  the  interior  of 
the  country,  to  the  sources  of  the  rivers  emptying 
within  that  coast,  to  all  their  branches  and  the  country 
they  cover,  and  to  give  it  a  right,  in  exclusion  of  all 
other  nations,  to  the  same."^^  Referring  to  this  rule, 
one  of  the  most  eminent  of  recent  publicists  suggests 
that  it  perhaps  may  be  qualified  by  the  * '  tacit  reserva- 
tion" that  **the  extent  of  coast  must  bear  some  rea- 
sonable proportion  to  the  territory  which  is  claimed  in 
virtue  of  its  possession.  "^^ 

An  examination  of  boundary  settlements  will  further 
show  that,  in  its  practical  application  to  such  settle- 
ments, the  principle  of  uti  possidetis  has  also  been 
employed  in  an  ancillary  sense,  as  an  aid  to  the  under- 
standing and  establishment  of  claims  founded  on  docu- 
mentary titles  rather  than  as  a  means  of  overriding 
them.  In  such  cases  the  question  may  be  considered 
as  one  compounded  of  law  and  of  fact,  and  calling  for 
an  equitable  solution. 

"  Messrs.  Monroe  and  Pinckney,  American  Plenipotentiaries,  to  Don 
Pedro  Cevallos,  Minister  of  State  of  Spain,  April  20,  1805,  2  Am.  State 
Papers,  Foreign  Relations  (folio),  664. 

'*Hall,  International  Law,  4th  ed.,  p.  111. 


14  MEMORANDUM 

IV.  The  Principle  of  Uti  Possidetis  in  Latin- 
America. 

Nowkere  has  the  principle  of  Uti  possidetis  beeii 
more  frequently  invoked  than  in  the  adjust^  lent  of 
boundaries  in  Latin-America.  This  circumstance  is 
to  be  ascribed,  not  to  any  theoretical  preference  for  the 
principle  among  the  peoples  concerned,  but  to  the  sim- 
ple fact  that  the  conditions  there  existing — conditions 
growing  out  of  the  gradual  exploration  and  settlement 
of  vast  regions  previously  unknown — required  its  in- 
troduction as  the  only  practical  basis  of  delimitation. 
' '  Frequent  conventions, ' '  says  an  eminent  Chilean  pub- 
licist, ''were  concluded  on  the  subject  of  boundaries. 
But,  whether  or  not  the  boundary  lines  thus  established 
were  drawn  on  the  authority  of  the  uti  possidetis  of 
1810,  they  were  vague  and  sometimes  conflicting,  ow- 
ing to  the  lack  of  precise  geographical  knowledge  of 
the  regions  affected.  For  this  reason,  all  the  states 
of  America  have  had  boundary  disputes  with  all  of 
their  neighbors.  The  peculiar  geographical  situation 
of  these  countries,  located  on  the  coast  and  with  terri- 
tory extending  in  toward  the  centre  of  the  continent 
and  delimiting  several  states  at  the  same  time,  made 
such  a  clash  inevitable.  Brazil,  for  example,  touches 
the  frontiers  of  all  the  states  of  South  America  and 
the  three  Guianas,  with  the  exception  of  Chile.  Further- 
more, the  disputes  extended  over  immense  zones  of 
territory,  which  were  oftentimes  claimed  by  two  or 
more  States  at  one  and  the  same  time.  It  may  be  said 
that  a  very  considerable  part  of  the  diplomatic  his- 
tory of  Latin-America  reduces  itself  to  an  account 
of  the  struggle  over  boundaries.    For  this  reason,  and 


UTI  POSSIDETIS  15 

because  of  their  great  political  and  economic  signifi- 
cance, these  contests  occupy  a  place  of  capital  impor- 
tance in  that  history.  They  have  given  rise  to  armed 
invasions  or  to  occupations  of  the  tracts  in  litigation, 
by  one  of  the  interested  parties  and  have,  on  more  than 
one  occasion,  led  to  war.  They  have,  as  well,  created 
interesting  new  problems  of  International  Law :  e.  g., 
the  rights  and  duties  of  the  interested  states  in  the 
territory  in  dispute,  during  the  process  of  the  contest; 
the  value  of  bona  fide  acts  of  occupation  in  it;  the 
responsibility  of  the  States  for  acts  of  civilized  per- 
sons or  native  tribes  committed  in  the  contested 
zones.  "^^ 

It  is  a  matter  of  common  knowledge  that,  after  tho 
first  discoveries  of  Columbus  were  made  known  in  Eu- 
rope, the  Pope,  Alexander  VI.,  by  a  Bull  issued  on  May 
4,  1493,  declared  that  all  lands  discovered  and  to  be 
discovered  *'to  the  west  and  south"  of  a  line  drawn, 
from  the  North  to  the  South  Pole,  100  leagues  **west 
and  south"  of  the  Azores  and  Cape  Verde  Islands, 
and  not  in  the  actual  possession  of  any  Christian 
power,  should  belong  exclusively  to  Spain. ^^  This  line 
proving  to  be  unacceptable  to  the  Portuguese  Govern- 
ment, it  was  modified  by  the  treaty  of  Tordesillas  of 
June  7, 1494,  by  which  a  dividing  line  between  the  lands 
discovered  or  to  be  discovered  by  Spain  and  Portugal 
was  drawn  at  370  leagues  west  of  the  Cape  Verde  Is- 
lands. The  Papal  Bull,  as  modified  by  the  treaty  of 
Tordesillas,  is  often  referred  to  by  writers  as  having 
divided  the  '^New  World"  between  Spain  and  Por- 
tugal; but  a  moment's  consideration  will  convince  us 


'*  Alvarez,  American  Problems  in  International  Law,  23-24. 
"Dumont.  Corps  Diplomatique,  vol.  ITT.,  part  2,  pp.  302-303. 


i6  MEMORANDUM 

that  this  conception  of  the  matter  involves  an  ana- 
chronism. As  much  as  jfifteen  years  after  the  first  dis- 
coveries of  Columbus,  although  one  may  find  on  the 
map  a  segment  of  what  we  now  know  as  the  continent 
of  South  America,  he  will  also  find  to  the  north,  lying 
between  Europe  and  Asia,  a  vast  stretch  of  ocean, 
obstructed  only  by  a  few  islands.^^  The  New  World, 
as  we  now  know  it,  was  still  unknown,  so  that,  however 
broad  the  terms  of  the  Papal  Bull  and  the  treaty  of 
Tordesillas  may  be,  there  was  no  actual  concrete  in- 
tention of  dividing  between  Spain  and  Portugal  the 
continents  of  North  and  South  America.  Nor  was 
this  all.  When  in  later  years  the  American  continents 
were  revealed,  and  Spain  and  Portugal  had  prosecuted 
their  discoveries  not  only  in  the  Western  Hemisphere 
but  also  in  the  Eastern,  it  was  found  to  be  impossible 
to  apply  the  line  of  demarcation  of  the  fifteenth  cen- 
tury. Owing  to  the  defective  state  of  geographical 
science,  no  agreement  could  be  reached  even  as  to  the 
length  of  a  degree  on  a  great  circle,  the  extent  of  a 
league  was  undetermined,  and  no  man  could  tell  where 
the  line,  even  if  it  were  to  be  adhered  to,  should  ac- 
tually run.  Moreover,  each  country  had,  in  its  explo- 
rations and  settlements,  overstepped  what  the  other 
conceived  to  be  its  proper  sphere,  so  that  any  attempt 
to  run  the  line  would  necessarily  involve  sacrifices. 
If  it  were  fixed  at  one  place,  Portugal  must  give  up  a 
part  of  Brazil ;  if  it  were  fixed  at  another,  Spain  must 
give  up  the  Philippines. 

As  the  only  way  out  of  their    difficulty,    the   two 
Crowns  decided  to  renounce  their  ancient  disputes,  and 

"  See  Ruysch's  Nova  et  universalior  Orbis  cogniti  tabula,  Romae  1508, 
in  Nordenskiold's  Facsimile-Atlas,  1889,  p.  63  et  seq.,  map  xxxii. 


UTI   POSSIDETIS  17 

''agreed  in  consigning  to  oblivion  the  rival  claimR  grow- 
ing out  of  the  demarcation  line,  and  began  all  over 
again,  declaring  Alexander's  Bull  and  the  treaty  of 
Tordesillas  and  others  based  thereon  all  null  and 
void."'« 

This  conclusion,  which  was  merely  the  necessary 
summary  of  existing  conditions,  was  formally  an- 
nounced in  the  treaty  Jjetween  Spnin  and,  Porlu^p^ 
signed  at  Madrid,  jRpnnry  1.^^  iTr^p  in  this  treaty 
the  contracting  parties. declared  that  they  had  resolved 
to  put  an  end  to  past  and  future  disputes  and  to  forget 
and  desist  from  all  actions  and  rights  which  they  might 
have  had  by  virtue  of  previous  treaties,  agreements, 
or  acts,  and  to  oh  serve,  two  rvl.p.a^  thp.  f.r.<it  nf  wki^h.T'^Q 
that  the  best-known  landmarks,  such  as  the  sources  and 
courses  of  rivers  and  the  most  notable  mnuntnivui 
should  he  adapted  in  dpfitiinf^  fhn  hnundnrjfif^^  and  the 
second,  that  each  yarty  should  remain  in  possession 
of  what  it  then  held,  with  the  exception  of  sv^h  mutual 
cessions  as  should  he  made  fgr  fm«-f>^o^p  <*/  r^f^''>r\- 
ipMce^  in  order  that  the  houndaries  might  be  as  little 
subject  to  controversy/  as  possible. 

Owing  to  historical  incidents  which  need  not  be  here 
detailed,  the  divisional  line,  the  bases  of  which  were 
thus  indicated,  was  not  actually  run,  and  when  the 
colonies  of  Spain  and  Portugal  became  independent 
their  common  frontiers  remained  unmarked;  but  the 
principle  of  uti  possidetis  was  preserved.  Thus  by 
the  treaty  of  limits  between  Brazil  and  Uruguay,  con- 
cluded at  Kio  de  Janeiro,  October  12,  1851,  it  was  de- 
clared (Art.  II.)  that  the  contracting  parties  recognized 

"  The  Demarcation  Line  of  Alexander  VI.,  Yale  Review,  vol.  I.,  p  54. 


i8  MEMORANDUM 

*'as  the  basis  which  is  to  regulate  their  limits  the  uti 
possidetis. "^"^  By  the  treaty  between  Brazil  and  Peru, 
signed  at  Lima,  October  23, 1851,  it  was  agreed  that  the 
boundaries  between  the  two  countries  should  be  ' '  regu- 
lated on  the  principle  of  uti  possidetis."  So,  in  the 
treaty  of  limits  between  Brazil  and  Venezuela,  signed 
at  Caracas,  November  25,  1852,  it  was  declared  (Art. 
II)  that  the  contracting  parties  agreed  upon  and  recog- 
nized '  *  as  a  basis  for  the  determination  of  the  frontier 
between  their  respective  territories  the  uti  posside- 
tis."'^^ By  the  convention  between  Brazil  and  Paraguay 
concluded  at  Eio  de  Janeiro,  April  6,  1856,  the  con- 
tracting parties  agreed  that  they  would  "respect  and 
reciprocally  cause  the  present  uti  possidetis  to  be  re- 
spected."^" The  same  principle  was  recognized  in  the 
treaty  of  limits  and  the  accompanying  protocol  between 
Brazil  and  the  Argentine  Confederation  signed  at  Pa- 
rana, December  14, 1857.-^  These  instruments  are  of  spe- 
cial interest  as  showing  the  admixture  of  questions  of 
fact  and  of  law.  The  Brazilian  plenipotentiary  having 
in  the  protocol  declared,  in  respect  of  certain  debat- 
able islands  in  the  River  Uruguay,  that  in  agreeing, 
as  he  had  done  in  Art.  IV  of  the  treaty,  that  the  two 
governments  should  determine  the  matter  ''in  con- 
formity with  the  principles  of  international  law,"  he 
did  so  on  the  understanding  that  "there  was  no  in- 
tention of  prejudging  by  that  clause  the  facts  of  pos- 
session on  the  part  of  either  nation,  *  *  *  which, 
moreover,  he  considered  to  be  well  understood,  because 
the  law  of  nations  also  sanctions  the  principle  of  uti 

"  British  and  Foreign  State  Papers,  Vol.  40,  p.  1151. 
"  Br.  &  For.  State  Papers,  vol.  49,  p.  1213. 
"  Br.  &  For.  State  Papers,  vol.  46,  p.  1304. 
*"  Br.  &  For.  State  Papers,  vol.  49.  p.  1316. 


UTI   POSSIDETIS  ig 

possidetis  as  a  legitimate  title  to  territorial  owner- 
ship," the  Argentine  plenixjotentiarj^  replied  that  he 
could  not  ''acknowledge  any  possession  which  was  not 
hy  reason  of  the  sovereignty  which  the  Empire  had 
over  one  of  the  banks  and  the  moiety  of  the  river.  "="» 
Fmally,  in  the  treaty  between  Brazil  and  Bolivia, 
concluded  at  La  Paz,  March  27,  1867,  the  contracting 
parties  agreed  (Art.  II)  "m  recognizing  as  a  basis 
on  which  to  determine  the  boundaries  between  their 
respective  territories,  the  uti  possidetis." 

V.  Its  Application  in  Spanish  America. 

1.  Origin  of  the  Spanish- American  States. 

As  has  been  seen,  the  peoples  of  Spanish  America 
became  familiar  with  the  principle  of  uti  possidetis 
in  the  colonial  days,'  when,  with  their  neighbors  of 
Portuguese  nationality,  they  engaged  in  territorial  dis- 
putes which  their  home  governments  sought  to  ad- 
just. After  their  emancipation,  they  found  occasion 
to  invoke  the  same  principle  as  between  themselves. 

Prior  to  the  emancipation,  Spanish  America  was  di- 
vided into  four  viceroyalties :  Mexico,  Santa  Fe  (New 
Granada),  Peru,  and  Buenos  Aires;  and  into  seven 
captaincies-general:  Cuba,  Porto  Rico,  Santo  Domin- 
go, Yucatan,  Guatemala,  Caracas  (Venezuela),  and 
Chile.  What  an  eminent  Chilean  publicist  has  termed 
the  ' '  supersensitive  spirit  of  national  independence, '  '-- 
but  what  might  with  equal  justice  be  regarded  as  the 
manifestation  of  local  attachments  inevitably  result- 
ing from  generations    of   association    and   confirmed 

''Id.  1318. 

**  Alvarez,  American  Problems  in  International  Law,  21 


20  MEMORANDUM 

habits  of  political  thought  and  action,  caused  these  ad- 
ministrative divisions  to  split  up  into  independent  states. 
Colombia,  as  successor  of  the  viceroyalty  of  Santa  Fe 
(New  Grenada),  and  Venezuela,  as  the  successor  of 
the  captaincy-general  of  Caracas,  date  their  movement 
of  emancipation  from  1810.  November  27,  1811,  rep- 
resentatives of  five  provinces  of  Santa  Fe  adopted  at 
Bogota  a  federative  compact,  constituting  The  United 
Provinces  of  New  Granada.  In  this  compact,  while 
declaring  their  wish  to  establish  a  general  government 
which  should  exercise  the  powers  ''proper  and  peculiar 
to  the  nation,  considered  as  one  and  indivisible,"  they 
reserved  to  each  of  the  provinces  '4ts  liberty,  sov- 
ereignty, and  independence  in  all  matters  which  do 
not  concern  the  common  weal,"  and  particularly  guar- 
anteed, not  to  the  nation,  but  to  ''each"  of  the  provinces 
"the  integrity  and  inviolability  of  its  territories."^^ 
In  December,  1819,  a  Congress  of  delegates-  of  Vene- 
zuela and  New  Granada  declared  these  two  States  to 
be  united  under  the  name  of  Colombia;  and  into  this 
union  Bolivar  incorporated  in  1822  the  territories  of 
Quito  and  Guayaquil.  In  1829  Venezuela  detached 
herself,  while  in  1830  Quito  and  Guayaquil  formed  a 
republic  called  Ecuador.  The  ancient  New  Granada, 
left  alone,  resumed  its  original  name,  which  it  again 
dropped  in  1857  for  that  of  Colombia.^^.  The  ancient 
Viceroyalty  of  Buenos  Aires,  dating  its  movement  of 
emancipation,  as  also  does  Chile,  from  1810,  declared 
itself  independent  in  1816,  under  the  name  of  the 
United  Provinces  of  the  Kio  de  la  Plata;  but  the  ter- 
ritory, to  which  it  in  whole  or  in  part  laid  claim,  came 

"*  1  Br.  &  For.  State  Papers,  part  2,  pp.  1069-1089. 

"  See  Alvarez,  Le  Droit  International  Americain,  62-63. 


UTI   POSSIDETIS  21 

sooner  or  later  to  form  the  four  independent  states 
of  Argentina,  Paraguay,  Uruguay,  and  Bolivia.  The 
ancient  captaincy-general  of  Guatemala,  declaring  its 
independence  in  1821,  became  in  1823  the  Republic 
of  the  Centre  of  America,  which  later  broke  up  into 
the  five  independent  states  of  Guatemala,  Salvador, 
Honduras,  Nicaragua,  and  Costa  Rica.  Peru  dates 
her  independence  from  1824.  It  is  needless  to  say  that 
the  establishment  of  the  various  independent  govern- 
ments which  have  been  enumerated  did  not  take  place 
without  frequent  armed  conflicts,  into  the  history  of 
which  it  is  unnecessary  now  to  enter. 

2.  Absence  of  Definite  Boundaries. 

When  the  process  of  emancipation  was  complete, 
not  a  single  boundary  line  had  been  actually  agreed 
upon  and  defined,  much  less  marked.  Even  where  at- 
tempts were  made  to  indicate  them,  the  indications 
were  insufficient  or  defective,  owing  to  the  want  of 
precise  geographical  data.  The  earlier  laws,  decrees 
and  orders  of  the  former  Spanish  government,  home 
and  colonial,  were  for  the  same  reason  necessarily  in- 
sufficient. 

The  act,  formulated  in  1819  and  adopted  in  1821, 
uniting  New  Granada  and  Venezuela  as  the  Republic 
of  Colombia,  declared  that  the  territory  of  that  Re- 
public should  be  that  comprehended  within  the  limits 
of  the  ancient  captaincy-general  of  Venezuela  and  the 
viceroyalty  of  New  Granada,  but  that  the  "settlement 
of  its  precise  boundaries"  should  be  ** reserved  for 
fi  more  suitable  time.'"''     The  constitution  of  Vene- 

"9  Br.  &  For.  State  Papers,  696. 


22  MEMORANDUM 

zuela,  adopted  in  1830,  merely  stated  that  the  national 
territory  comprised  ''all  that  which,  previously  to  the 
political  changes  of  1810,  was  denominated  the  cap- 
taincy-£?eiieral  of  Venezuela."-*'  A  similar  definition, 
mutatis  mutandis,  was  embodied  in  the  constitution 
of  New  Granada  of  1832.-'  It  was  only  in  1881  that  a 
treaty  was  concluded  between  the  two  countries  refer- 
ring their  disputes  as  to  boundaries  to  the  arbitration 
of  the  King  of  Spain. 

The  treaty  of  perpetual  union,  league  and  confedera- 
tion between  Colombia  and  Peru,  signed  at  Lima,  July 
6,  1822,  contained  the  following  stipulation: 

"Art.  IX.  The  demarcation  of  the  precise 
Boundaries  which  are  to  divide  the  Territories 
of  the  Republic  of  Colombia  and  the  State  of 
Peru,  shall  be  arranged  by  a  particular  Con- 
vention as  soon  as  the  approaching  Congress  of 
Peru  shall  have  authorized  the  Executive  of  that 
State  to  settle  this  point;  and  any  differences 
which  may  occur  on  this  subject  shall  be  settled 
by  conciliatory  and  peaceful  measures,  becom- 
ing brotherly  and  confederated  Nations.  "^^ 

Senor  Revenga,  Secretary  of  State  for  the  Depart- 
ment of  Foreign  Affairs  of  Colombia,  in  his  report  to 
the  Congress,  Jan.  2,  1826,  stated  that,  owing  to  the 
vicissitudes  which  Peru  had  experienced,  the  settle- 
ment of  the  frontier  on  that  side  had  been  postponed, 
but  that  there  was  reason  to  hope  that  it  would  be 
definitively  settled;  and  he  significantly  added  that 
in  preparing  instructions  for  the  representatives  of 

"18  Br.  &  For.  State  Papers,  1119. 

"19  Id.,  911. 

"11  Br.  &  For.  State  Papers,  105. 


UTI   POSSIDETIS  23 

Colombia  "particular  attention"  had  been  paid  to  se- 
curing "the  most  convenient,  clear  and  natural  fron- 
tiers. "2°  Finally,  the  two  countries,  by  the  treaty  of 
Sept.  22,  1829,  following  a  war  between  them,  entered 
into  the  following  stipulation: 

"Article  V.  Both  parties  acknowledge  as  the 
limits  of  their  respective  Territories  those  be- 
longing to  the  ancient  Viceroyalties  of  New 
Granada  and  Pei-u  prior  to  their  independence, 
with  such  variations  only  as  they  may  deem  it 
convenient  to  agree  upon ;  to  which  end  they  en- 
gage to  cede  to  each  other,  reciprocally,  such 
small  portions  of  Territory  as  may  be  necessary 
to  fix  the  Boundary  Line  in  a  more  natural  and 
precise  manner,  and  be  better  calculated  to  avoid 
offence  and  misunderstandings  between  the  au- 
thorities and  the  inhabitants  on  the  frontiers.  "^^ 

The  state  of  Ecuador  having  been  formed  out  of  the 
southern  part  of  Colombia,  it  accepted,  as  its  boundary 
with  the  latter  country,  the  limits  which,  conformably 
to  the  Law  of  Colombia  of  June  25,  1824,  "separated 
the  provinces  of  the  ancient  Department  of  the  Cauca 
from  that  of  Ecuador.  "^^  Succeeding  thus  to  the  dis- 
pute between  Colombia  and  Peru,  Ecuador  made  in 
1832  with  Peru  the  following  agreement: 

"Until  a  convention  respecting  the  limits  of 
the  two  States  shall  have  been  concluded,  the 
present  limits  shall  be  recognized  and  re- 
spected. '  '^2 

By  the  Treaty  of  Peace,  Friendship  and  Alliance, 
signed  at  Guayaquil,  Jan.  25,  1860,  another  stipula- 

*  13  Br.  &  For.  State  Papers,  1010-1011. 

'*  16  Br.  &  For.  State  Papers,  1242,  1243. 

''Treaty  of  Peace,  Dec.  8,  1832,  20  Br.  &  For.  State  Papers,  1206, 
1207,  Art.  II. 

"Art.  XIV,  Treaty  of  Friendship.  Alliance  and  Commerce  between 
Ecuador  and  Peru,  signed  at  Lima,  July  12,  1832,  20  Br.  &  For.  State 
Papers,  1311. 


24  MEMORANDUM 

tion  on  the  subject  of  boundaries  was  entered  into. 
Territories  claimed  by  Peru  having  been  pledged  or  ad- 
judicated to  British  creditors  of  Ecuador,  the  Peruvian 
negotiator  produced  certain  documents,  the  chief  of 
which  was  a  Royal  Decree  of  July  15,  1802,  to  sub- 
stantiate the  rights  asserted  by  Peru  to  the  territories 
of  Quijos  and  Canelos.  The  government  of  Ecuador, 
recognizing  the  value  of  the  documents,  declared  void 
the  '* adjudication,"  and  agreed  to  rectify  the  bound- 
aries and  to  this  end  to  appoint  a  mixed  commission. 
Meanwhile,  the  two  countries  engaged  to  accept  as 
their  limits  "those  which  arise  from  the  uti  possidetis 
acknowledged  in  Article  V.  of  the  Treaty  of  September 
22,  1829,  between  Colombia  and  Peru,  and  which  were 
those  of  the  ancient  viceroyalties  of  Peru  and  Santa 
Fe,  according  to  the  Royal  Decree  of  July  15,  1802," 
Ecuador  reserving,  however,  the  right  to  prove  its  title 
to  Quijos  and  Canelos  within  the  peremptory  term  of 
two  years.^^.  As  has  been  seen,^^  the  ^'uti  possidetis' ' 
of  the  treaty  of  1829  was  ''the  limits  *  *  *  be- 
longing to  the  ancient  viceroyalties  of  New  Granada 
and  Peru  prior  to  their  independence,"  the  date  of 
New  Granada's  independence  being  1810  and  of  Peru's 
1824.  By  a  treaty  signed  at  Quito,  August  1,  1887,  the 
two  countries  agreed  to  submit  the  question  of  their 
boundary  to  the  King  of  Spain,  whose  award  has  never 
been  rendered.  The  treaty  laid  down  no  rule  what- 
ever for  the  guidance  of  the  arbitrator's  decision.  The 
controversy  is  currently  stated  to  involve  as  to  Ecuador 
two-thirds  of  the  entire  territory  which  she  claims  as 
her  own. 

"no  Br.  &  For.  State  Papers,  1086,  1087. 
"  Supra,  p.  23. 


UTI  POSSIDETIS  as 

By  the  Definitive  Treaty  of  Peace  and  Friendship 
between  Bolivia  and  Peru,  signed  at  Arequipa,  Nov.  8, 
1831,  it  was  agreed  (Art.  XVI)  that  a  commission 
should  be  named  by  the  two  governments  **for  the 
purpose  of  drawing  up  a  topographical  Map  of  their 
Frontiers  and  another  the  statistics  of  the  Population 
located  upon  them,  in  order  that,  without  detriment 
to  the  two  States,  such  cessions  may  be  reciprocally 
made  as  may  be  necessary  for  an  exact  and  natural 
demarkation  of  their  Boundaries;  which  shall  be 
formed  by  the  rivers,  lakes,  or  mountains ;  it  being  un- 
derstood that  neither  Bolivia  nor  Peru  will  refuse  to 
make  such  transfers  as  may  conduce  to  this  object,  on 
condition  of  their  mutually  giving  such  competent  in- 
demnifications, or  compensations,  as  may  be  satisfac- 
tory to  both  Parties";  and  it  was  further  agreed  (Art. 
XVII) :  "Until  the  fulfilment  of  the  preceding  Article, 
the  existing  Boundaries  shall  be  recognized  and  re- 
spected. '  '^^ 

These  stipulations  were  substantially  repeated  in 
the  Treaty  of  Friendship  and  Commerce  signed  at  Are- 
quipa, Nov.  3,  1847.^^  This  treaty  was,  however,  ap- 
proved by  the  Peruvian  Government  and  Congress  only 
with  certain  "modifications  and  suppressions,"  to 
which  the  Bolivian  Government  and  Congress  gave 
their  consent.  A  new  Treaty  embodying  these  changes 
was  signed  at  Lima,  December  11,  1848.  Article  III 
of  this  treaty  reads  as  follows: 


« 19  Br.  &  For.  State  Papers,  1383,  1387-1388. 
••36  Br.  &  For.  State  Papers,  1137,  1138-1139. 


26  MEMORANDUM 

"III.  A  commission  shall  be  appointed  by 
both  Governments  charged  with  constructing 
a  topographical  map  of  their  frontiers,  for  the 
purpose  of  restoring  to  either  State  the  lands 
which  have  become  intermingled  with  the  actual 
frontiers,  reestablishing  their  ancient  land- 
marks with  the  view  of  avoiding  doubts  and  con- 
fusion in  future,  both  States  engaging  to  pre- 
serve the  territory  which  has  always  belonged 
to  them,  and  not  to  demand  or  solicit  any  terri- 
tory from  the  other  either  by  way  of  transfer, 
compensation,  or  any  other  reason  whatso- 
ever. '  '^^ 

Fifteen  years  later,  the  boundary  still  remaining 
unadjusted,  another  treaty  was  concluded,  Nov.  5, 1863, 
by  which  it  was  again  agreed  to  appoint  a  Mixed  Com- 
mission ' '  to  make  the  topographical  chart  of  the  fron- 
tiers, and  to  verify  the  demarcation  according  to  the 
data  and  instructions"  which  should  ''be  duly  given  by 
both  the  parties."  This  work  was  to  *'be  taken  into 
consideration  for  a  Treaty  of  Limits"  which  should 
*'be  promptly  concluded,"  and  until  these  stipulations 
were  carried  out  the  ' '  actual  limits ' '  were  to  be  ' '  recog- 
nized and  respected.  "^^  Only  within  the  past  two 
years,  as  the  result  of  an  award  of  the  President  of 
the  Argentine  Eepublic,  as  arbitrator,  supplemented  by 
a  compromise  as  to  a  part  of  the  line  awarded,  has  a 
conclusion  been  reached. 

The  boundary  between  Chile  and  Bolivia  formed  the 
subject  of  Treaties  concluded  August  10,  1866,  Janu- 
ary 8,  1873,  August  6,  1874,  and  June  21,  1875.  Con- 
tested sovereignty  over  two  geographical  degrees  of 
territory  was  involved  in  the  discussion.    No  general 

"  37  Br.  &  For.  State  Papers,  794,  795. 
•»  55  Br.  &  For.  State  Papers,  837,  841. 


UTI  POSSIDETIS  rj 

principles  were  enunciated  in  the  treaties.  The  pres- 
ent possession  of  the  parties  was  entered  upon  under 
the  treaty  of  peace  of  Ancon  of  1883.'® 

By  the  Treaty  of  Peace,  Friendship,  Commerce  and 
Navigation  between  the  Argentine  Repuljlic  and  Bo- 
livia, signed  at  Buenos  Aires,  July  9,  1868,  it  was 
agreed  that  the  boundary  should  be  arranged  by  a 
special  convention,  and  that,  until  the  demarcation 
should  be  made,  possession  should  "confer  no  right  to 
territories  which  did  not  belong  in  the  first  instance  to 
either  nation."^*'  A  modus  vivendi  was  arranged,  June 
11,  1888,  by  which  it  was  agreed  (1)  ihat,  within  the 
Chaco,  a  provisional  line  should  be  observed,  with  the 
stipulation  that  Bolivia  should  come  to  an  understand- 
ing with  Paraguay  as  to  boundaries;  and  (2)  that,  out- 
side the  Chaco,  where  Bolivia  borders  on  the  Argentine 
Republic,  neither  Government  was  "to  advance  be- 
yond its  actual  possessions."  It  was  understood  that 
this  provisional  arrangement  was  to  imply  no  renun- 
ciation of  territorial  claims.^ ^ 

In  the  Treaty  of  Limits  of  July  15, 1852,  the  Argen- 
tine Republic  and  Paraguay  undertook  to  fix  their 
boundaries  by  direct  negotiation.  No  mention  is  made 
of  the  uti  possidetis  in  any  form;  nor  is  any  reference 
made  to  principles  beyond  the  declaration  that  the  con- 
tracting Governments,  "with  the  view  of  fixing  defi- 
nitely the  relations  between  the  two  States,  founded 
on  the  principle  of  reciprocal  interest,  community  of 
origin,  and  other  circumstances  that  naturally  unite 
them,"  had  "resolved  to  establish  where  most  neces- 

"56  Br.  &  For.  State  Papers,  717-719;  65  Id..  275-276;  71   Id.,  897; 
Alvarez,  American  Principles  of  International  Law,  22. 
*72  Br.  &  For.  State  Papers,  601-611. 
••  79  Br.  &  For.  State  Papers,  832-833. 


28  MEMORANDUM 

sary  their  territorial  limits,  establishing  at  the  same 
time  the  bases  on  which  commerce  and  navigation" 
should  be  '' arranged  between  the  two  Republics."'*^ 
By  the  Treaty  of  Limits  of  February  3,  1876,  they 
drew  a  line  without  declaration  of  principles,  but  sub- 
mitted to  the  Arbitration  of  the  President  of  the  United 
States,  who  duly  rendered  an  award,  the  question  of 
title  to  a  certain  portion  of  territory,  including  the 
Villa  Occidental.^^ 

By  the  Treaty  of  Friendship,  Alliance,  Commerce 
and  Navigation,  signed  at  Santiago,  Nov.  20,  1826,  the 
United  Provinces  of  the  Rio  de  la  Plata  and  Chile 
bound  themselves  (Art.  Ill)  ''to  guarantee  the  integ- 
rity of  their  Territories,  and  to  co-operate  against 
whatever  Foreign  Power  should  attempt  to  alter,  by 
force,  their  respective  boundaries,  as  recognized  before 
their  emancipation,  or,  subsequently,  in  virtue  of  spe- 
cial Treaties."*^  Thirty  years  later,  the  Argentine 
Republic  and  Chile,  by  their  treaty  of  peace,  com- 
merce and  navigation,  concluded  Aug.  30, 1855,  entered 
into  the  following  stipulation : 

''Art.  XXXIX.  The  two  contracting  parties 
recognize  as  the  limits  of  their  respective  ter- 
ritories those  which  they  possessed  as  such  at 
the  time  of  their  separation  from  the  Spanish 
dominion  in  the  year  1810;  and  they  agree  to 
adjourn  the  questions  which  have  been  or  may 
be  raised  on  this  matter,  in  order  to  discuss  them 
later  in  a  pacific  and  friendly  manner,  without 
ever  having  recourse  to  violent  measures;  and, 
in  case  they  should  not  have  brought  about  a 

"42  Br.  &  For,  State  Papers,  1256. 
"68  Br.  &  For.  State  Papers,  97. 
"  14  Br.  &  For.  State  Papers,  968. 


UTI  POSSIDETIS  29 

complete  agreement,  to  submit  them  to  the  ar- 
bitration of  a  friendly  nation." 

On  this  basis  the  adjustment  proceeded,  with  nego- 
tiation, mediation,  and  arbitrations,  till  at  length  the 
divisional  line  was  established,  claims  of  right  giving 
way,  as  Calvo  has  observed,  to  ''arrangements  of  de- 
limitation."^*^ 

Without  undertaking  here  to  review  in  detail  the  ad- 
justments of  boundary  between  the  States  of  Central 
America,  it  suffices  to  say  that  they  have  adopted  as 
a  general  basis  of  settlement  the  limits  of  the  time 
of  their  independence,  viewed  in  the  light  of  the  prin- 
ciples of  international  law  and  of  considerations  of 
equity  and  practical  convenience.  Thus,  in  the  bound- 
ary convention  between  Guatemala  and  Honduras,  of 
March  1,  1895,  the  contracting  parties,  after  providing 
for  the  appointment  of  a  mixed  commission  to  make 
studies  and  surveys  and  propose  bases  of  settlement, 
stipulated  as  follows : 

''Article  VI.  To  take  the  necessary  resolu- 
tions, the  Contracting  Governments,  after  the 
Mixed  Commission  shall  have  presented  their 
Eeport,  shall  give  their  consideration  to  the  ob- 
servations and  studies  of  said  Commission,  and 
the  lines  marked  in  public  documents  not  con- 
tradicted by  others  of  the  same  nature  and  of 
greater  force,  giving  to  each  the  value  corre- 
sponding to  it  according  to  its  antiquity  and  juri- 
dical efficacy;  the  extent  of  the  territory  which 
formed  the  ancient  provinces  of  Guatemala  and 
Honduras  at  the  date  of  their  independence; 
the  dispositions  of  the  Royal  Ordinance  of  In- 
tendants  which  then  ruled;  and,  in  general,  all 

"  Calvo,  Le  Droit  International,  ed.  1896,  I.  424. 


30  MEMORANDUM 

documents,  maps,  plans,  etc.,  which  may  lead 
to  clearing  up  the  truth,  preference  being  given 
to  those  which  by  their  nature  should  have 
greater  force  owing  to  their  antiquity,  or  being 
more  clear,  just,  or  impartial,  or  for  any  other 
such  good  reason  according  to  the  principles  of 
justice. 

''Possession  shall  only  be  considered  valid  so 
far  as  it  is  just,  legal,  and  well  founded,  in  con- 
formity with  general  principles  of  equity,  and 
with  the  rules  of  justice  sanctioned  by  the  law 
of  nations. '  '^® 

In  the  Treaty  of  Tegucigalpa  of  1894,  under  which 
Honduras  and  Nicaragua  submitted  their  boundary 
question  to  the  King  of  Spain,  whose  award  was 
rendered  in  1906,  it  was  agreed  that  each  of  the  Ee- 
publics  was  the  owner  of  the  territory  which,  at  the 
date  of  their  independence  from  Spain,  the  date  of 
which  was  reckoned  as  1821,  constituted,  respectively, 
the  Provinces  of  Honduras  and  Nicaragua. 

Costa  Rica  and  Nicaragua  adjusted  their  boundary 
in  1858  by  direct  negotiation.  The  validity  and  effect 
of  this  settlement  formed  the  subject  of  an  arbitration 
before  the  President  the  United  States  in  1888.*^ 

The  unsettled  boundary  between  Guatemala  and 
Mexico  has  formed  the  subject  of  numerous  conven- 
tions. In  a  preliminary  agreement  signed  at  New 
York,  August  12, 1882,  by  President  Barrios,  of  Guate- 
mala, and  Mr.  Romero,  the  Mexican  Minister  in  the 
United  States,  there  may  be  noted  the  following  clause : 

"V.  In  the  demarcation  of  the  boundary  line 
actual  possession  shall,  as  a  general  rule,  serve 

*•  87  Br.  &  For.  State  Papers,  530,  531-532. 

"  Moore,  International  Arbitrations,  II.,  1945-1968. 


UTI   POSSIDETIS  31 

as  tlie  basis  by  which  to  be  guided ;  but  this  shall 
not  prevent  said  basis  from  being  laid  aside  by 
both  parties,  by  mutual  consent,  for  the  purpose 
of  following  natural  lines,  or  for  any  other  rea- 
son, and  in  such  case  the  system  of  mutual  com- 
pensations shall  bo  adopted.  Until  the  bound- 
ary line  of  demarcation  be  determined,  each  of 
the  contracting  parties  shall  respect  the  actual 
possession  of  the  other.  "^® 


Referring  to  boundary  disputes  in  Latin-America, 
a  South  American  writer,  heretofore  quoted,  has  ob- 
served : 

''These  contests  have  been  terminated  gener- 
ally by  compromise  or  arbitration.  In  these 
cases,  the  arbitral  sentence  has  always  given 
more  importance  to  titles  of  occupation,  pos- 
session, prescription,  etc.,  established  by  the 
interested  states,  than  to  the  economic  condi- 
tion in  which  these  territories  would  remain  in 
consequence  of  the  award.  Thus,  it  has  more 
than  once  occurred  that  these  contests  have 
been  resuscitated,  or  remain  only  latent  so  that 
some  day  they  may  again  become  a  new  cause 
of  conflicts.  "^» 


3.  Uti  Possidetis  of  the  Date  of  Independence. 

In  applying  the  principle  of  uti  possidetis  to  their 
boundary  settlements,  the  countries  of  Spanish  Amer- 
ica, in  cases  in  which  conquest  has  not  played  a  part, 
have  adopted  as  the  time  of  its  application  the  date  of 
their  independence, — a  criterion  in  no  sense  specially 

"73  Br.  &  For.  State  Papers,  272,  273. 

"  Alvarez,  American  Problems  in  Int.  Law,  24. 


32  MEMORANDUM 

Spanish- American,  since  it  is  also  maintained  by  Bra- 
zil, and  is  in  fact  the  only  one  for  which  the  gromids  are 
apparent.  But,  from  the  review  just  made  of  actual 
international  agreements  and  settlements,  three  facts 
stand  clearly  out:  (1)  That  the  principle  was  not  ex- 
presaly.ref erred  to- inihe  earlier  treaties,  and  that  it 
lias  not  been  so  constantly  invoked  nor  has  its  practical 
effect  been  by  any  means  so  important  as  writers  and 
learned  advocates  have  sometimes  asserted;  (2)  that 
as  to  the  date  of  its  application  there  is  a  radical  and 
permanent  disagreement,  based  upon  historical  facts 
that  cannot  be  altered;  and  (3)  that  it  was  only  after 
the  lapse  of  years,  when  wars  had  opened  the  way  to 
claims  based  on  violence  and  the  spectre  of  conquest 
had  arisen,  that  enough  importance  began  to  be  at- 
tached to  the  date  to  cause  it  to  be  mentioned  in 
treaties.  As  a  safeguard  against  this  peril,  an  attempt 
was  made  to  establish,  without  regard  to  all  the  facts, 
a  general  principle,  having  the  aspect  of  a  rule  of  law, 
which  any  power  seeking  to  establish  or  to  enlarge  its 
boundaries  by  force  might  be  charged  with  having  vio- 
lated. This  attempt  was,  however,  confined  to  South 
America,  for  the  obvious  reason  that  there  was  not  a 
single  Central  American  State  that  could  claim  to 
have  been  independent  earlier  than  1821.  '^In  South 
^merica,"  says  a  writer  heretofore  quoted,  **  bound- 
ary, controversies  have  been  based  generally  on  the 
theory  that  the  right  to  the  disputed  zone  is  derived 
from  the  uti  possidetis  of  1810,  which  is  vague  and 
sometimes  conflicting  and  on  that  account  has  often 
led  to  three  countries  claiming  the  same  territory.'"''^ 

"Alvarez,  American  Problems  in  International  Law   (N.  Y.,  1909), 
04.    The  Author  is  counsellor  to  the  Chilean  Foreign  Office. 


UTI  POSSIDETIS  33 

Again,  referring  to  the  same  subject,  he  says : 

"In  the  settlement  of  disputes  concerning  the 
delimitation  of  boundaries  a  principle  of  purely 
American  origin  is  frequently  involved,  namely, 
the  Uti  Possidetis  of  1810,  which  has  l)een  rec- 
ognized by  many  of  the  States  of  the  New  World 
in  treaties,  conventions,  and  acts.  This  princi- 
ple modifies,  defines,  and  at  the  same  time  is 
influenced  by  the  general  principle  of  long  con- 
tinued pacific  possession  of  disputed  terri- 
tory."" 

In  the  acts  of  the  Panama  Congress,  before  which, 
in  view  of  the  objects  of  the  meeting,  the  territorial 
question  was  necessarily  important,  the  phrase  uti 
possidetis  is  not  found;  and  this  in  spite  of  the  fact 
that  Colombia,  which  seems  to  have  taken  the  lead  in 
introducing  it  into  diplomatic  correspondence,  distinct- 
ly proposed  its  adoption  in  the  discussions  leading  up 
to  the  Congress.  This  fact  is  stated  by  Senor  Pedro 
Gual,  Secretary  of  State  for  Foreign  Affairs,  who,  in 
his  report  to  the  Colombian  Congress,  April  17,  1823, 
referring  to  the  steps  taken  to  bring  about  an  American 
Confederation  by  means  of  a  Congress  at  Panama, 
specified,  as  one  of  the  articles  which  his  Government 
had  proposed : 

**n.  That  in  order  to  render  this  guarantee 
(of  territories)  effective,  the  uti  possidetis  of 
1810,  according  to  the  demarcation  of  Territory 
of  each  Captaincy-General  or  Viceroyalty, 
erected  into  a  sovereign  state,  be  taken  as  the 
rule."'^^ 


"Id.  96. 

•^  10  Br.  &  For.  State  Papers,  742-743. 


3-1  MEMORANDUM 

The  Congress  met  on  June  22,  1826,  Colombia,  Cen- 
tral America,  Peru  and  Mexico  being  represented.  At 
the  last  of  the  ten  meetings,  which  was  held  on  the  15th 
of  July,  there  were  signed  (1)  a  "treaty  of  union, 
league,  and  perpetual  confederation,"  (2)  an  agree- 
ment for  the  periodical  reassembling  of  the  Congress 
at  Tacubaya,  in  Mexico,  (3)  a  convention  fixing  the 
military  forces  to  be  furnished  by  each  Republic  for 
the  common  defense,  and  (4)  an  agreement  as  to  the 
organization  of  the  confederate  army.  The  only  one 
of  these  instruments  in  which  boundaries  are  mentioned 
is  the  first.  It  appears  by  the  protocols  of  the  Congress 
that  on  the  11th  of  July,  the  draft  of  the  treaty  of 
"union"  being  under  consideration,  the  plenipoten- 
tiaries of  Central  America,  when  Art.  21  was  read, 
proposed  to  supplement  it  by  "an  additional  article, 
whereby  the  limits  of  each  nation,  as  fixed  by  amicable 
arrangements  to  be  made  according  to  circumstances, 
should  be  mutually  guaranteed."  The  proposed  arti- 
cle was  read  and  agreed  to,  and  was  numbered  22. 
These  two  articles,  forming  part  of  the  treaty  of  "Un- 
ion, ' '  read  as  follows : 

"Article  21.  The  contracting  parties  solemnly 
obligate  and  bind  themselves  to  uphold  and  de- 
fend the  integrity  of  their  respective  territories, 
earnestly  opposing  any  attempt  of  colonial  set- 
tlement in  them  without  authority  of  and  de- 
pendence upon  the  Governments  under  whose 
jurisdiction  they  are,  and  to  employ  to  this  end, 
in  common,  their  forces  and  resources  if  nec- 
essary. 

"Article  22.  The  contracting  parties  mutually 
guarantee  the  integrity  of  their  territories  as 
soon  as,  by  virtue  of  special  conventions  con- 
cluded l3etween    each    other,    their    respective 


UTI   POSSIDETIS  35 

boundaries  shall  have  been  determined ;  and  the 
preservation  of  these  frontiers  shall  then  be  un- 
der the  protection  of  the  confederation.  "°^ 

As  is  generally  known,  the  treaties  never  became 
operative,  Colombia  alone  having  approved  them  and 
she  only  partially. 

It  is  sometimes  stated  that  the  uti  possidetis  of  1810 
was  proclaimed  by  the  Congress  at  Lima  in  1848,  but 
the  statement  appears  to  be  not  altogether  accurate. 
The  assembling  of  this  Congress,  which  met  on  Dec. 
11,  1847,  on  the  invitation  of  the  Peruvian  Govern- 
ment, and  in  which  Bolivia,  Chile,  Ecuador,  New  Gra- 
nada (Colombia),  and  Peru  were  represented,  was  due 
to  the  apprehension  felt  as  to  the  expedition  which 
General  Flores  was  organizing  in  Spain  to  recover  the 
government  of  Ecuador.  In  the  instructions  of  the 
Peruvian  Government  of  Nov.  30,  1847,  to  its  plenipo- 
tentiary, we  therefore  find  this  paragraph: 

''There  will  be  a  stipulation  made  between 
the  allied  nations  to  preserve  their  territorial 
integrity :  consequently,  they  will  not  permit  any 
foreign  power,  under  any  pretext  whatever,  to 
occupy  any  part  whatever,  no  matter  how  small 
it  may  be,  of  the  territory  of  any  of  the  allied 
States,  who  for  fixing  their  limits  will  adhere 
to  the  rule  of  the  uti  possidetis  of  1824,  when 
the  war  of  independence  ended  with  the  battle 
of  Ayacucho.'"^* 

December  16,  1847,  the  plenipotentiary  of  New  Gra- 
nada, in  accord  with  the  representatives  of  Chile  and 

''Treaty  of  perpetual  union,  league,  and  confederation  between  the 
Republics  of  Colombia,  Central  America,  Peru,  and  the  United  Mexican 
States,  signed  at  Panama,  July  15,  1826:  First  Int.  Am.  Conference, 
Historical  Appendix,  IV.  177,  184,  188. 

"  Aranda,  Congresos  y  Conferencias  Internacionales,  I.  87. 


36  MEMORANDUM 

Bolivia,  presented  to  the  Congress  a  project  of  a  treaty 
of  Confederation.  By  Art.  VII  of  this  project  it  was 
proposed  that  the  Confederated  Republics  should  ' '  rec- 
ognize as  a  principle  founded  in  perfect  right,  for  the 
fixing  of  their  respective  limits,  the  uti  possidetis  of 
1810";  that,  in  order  to  mark  such  limits,  when  they 
were  ''not  found  in  a  natural  and  precise  way"  (donde 
no  lo  estuvieren  de  una  manera  natural  y  precisa), 
they  should  name  commissioners,  who,  having  met,  and 
recognizing  as  far  as  possible  the  territory  involved, 
should  determine  the  dividing  line  of  the  two  Repub- 
lics, taking  the  summits  dividing  the  waters,  the  thal- 
weg of  the  rivers,  or  other  natural  lines,  when  the 
localities  permitted,  to  which  end  they  should  have 
power  to  make  the  necessary  exchanges  and  compensa- 
tions of  territory,  in  the  manner  most  conducive  to  the 
reciprocal  convenience  of  the  two  Republics;  that,  if 
the  line  adopted  by  the  commissioners  should  not  be 
approved,  the  matter  should  be  submitted  to  the  ar- 
bitral decision  of  the  Congress  of  Plenipotentiaries  of 
the  Confederated  Republics;  and  that  "the  Republics 
which,  having  been  parts  of  the  same  State  at  the  proc- 
lamation of  independence,  were  separated  after  1810, ' ' 
should  be  considered  as  having  the  boundaries  which 
they  recognized  as  theirs  "at  the  time  they  were  con- 
stituted," without  prejudice  to  treaty  settlement.^^ 
The  Plenipotentiary  of  Peru  presented  on  the  same 
day  the  bases  of  a  similar  treaty;  but,  in  conformity 
with  his  instructions,  he  proposed  (Art.  VI),  as  th(^ 
boundary  rule,  "the  uti  possidetis  of  1824,  after  th(? 
termination  of  the  war  of  independence  with  the  battle 
of  Ayacucho."''^ 

"  Aranda,  Congresos  y  Conferencias  Internacionales,  I.  92,  93,  96,  97. 
"Id.  I.  102,  104. 


UTI   POSSIDETIS  37 

Dec.  17,  1847,  the  Congress  took  up  the  New  Grana- 
dian  project.  When  Art.  VII  was  reached,  Peru  pro- 
posed to  substitute  the  uti  possidetis  of  1824  for  that 
of  1810.  A  majority  of  the  Plenipotentiaries  expressed 
the  view  that  the  battle  of  Ayacucho  had  nothing  to  do 
with  the  discussion,  and  had  created  no  new  right  as 
to  limits;  that  the  Spanish-American  Republics  could 
found  their  territorial  rights  only  on  the  dispositions 
of  the  Spanish  Government,  in  force  at  the  time  of  the 
declaration  of  independence,  and  on  the  treaties  and 
conventions  celebrated  since  that  date,  and  this  was 
what  the  article  provided.  The  Peruvian  Plenipoten- 
tiary asked  that  the  examination  of  the  article  be  sus- 
pended so  that  he  might  take  the  instructions  of  his 
Government  on  the  subject.  Jan.  8, 1848,  he  presented 
some  amended  articles,  among  which  was  a  draft  of 
Art.  VII  substantially  as  it  stood  in  the  final  treaty. 
This  treaty  was  signed  February  8.  Art.  VII  reads 
as  follows: 

''Article  VII.  The  Confederated  Republics  de- 
clare their  right  is  perfect  to  keep  the  bound- 
aries of  their  territories  as  they  existed  at  the 
time  of  the  independence  from  Spain  of  the  re- 
spective Viceroyalties,  Captaincies-general  or 
Presidencies,  into  which  Spanish  America  was 
divided;  and  in  order  to  mark  out  said  bound- 
aries where  thej"  are  not  found  in  a  natural  and 
definite  way,  they  agree  that  in  such  case  the 
Governments  of  the  Republics  interested  shall  ap- 
point commissioners,  who  having  met  and  recog- 
nizing as  far  as  may  be  possible  the  territory 
under  consideration,  shall  determine  the  divid- 
ing line  of  the  Republics,  taking  the  summits  that 
separate  the  waters  and  thalweg  of  the  rivers, 
or  other  natural  lines,  provided  the  localities 


38  MEMORANDUM 

permit  it;  to  which  end  they  shall  be  able  to 
make  the  necessary  and  compensatory  exchanges 
of  land,  in  such  manner  as  may  best  suit  the  re- 
ciprocal convenience  of  the  Eepublics,  If  the 
respective  Governments  do  not  approve  the  de- 
marcation made  by  the  commissioners,  or  if 
the  latter  are  not  able  to  come  to  an  agreement 
in  order  to  make  it,  the  matter  shall  be  submitted 
to  the  arbitral  decision  of  one  of  the  Confed- 
erated Republics,  or  of  some  friendly  Nation,  or 
of  the  Congress  of  the  Plenipotentiaries. 

"The  Republics  which,  having  been  parts  of 
the  same  State  at  the  proclamation  of  independ- 
ence, were  separated  after  1810,  shall  be  kept 
within  the  boundaries  which  they  recognized  for 
themselves,  without  prejudice  to  the  Treaties 
they  may  have  celebrated  or  shall  celebrate  in 
order  to  vary  or  perfect  them  in  conformity  with 
the  present  article. 

"What  is  provided  in  this  article  shall  in  no 
way  alter  the  Treaties  or  Conventions  concern- 
ing boundaries  celebrated  between  any  of  the 
Confederated  Republics,  nor  constrain  the  lib- 
erty which  these  Republics  may  have  to  arrange 
among  themselves  their  respective  bound- 
aries."°''' 

It  thus  appears  that  in  the  final  treaty  the  specifica- 
tion of  a  date  when  the  several  viceroyalties,  captain- 
cies-general and  presidencies  became  independent  of 
Spain  was  omitted,  the  year  1810  being  mentioned  only 
in  connection  with  States  which  split  up  after  the  move- 
ment for  independence  began. 

In  the  so-called  Continental  Treaty,  signed  Sept.  15, 
1856,  by  the  Ministers  of  Peru,  Chile,  and  Ecuador,  it 
was  agreed  (Art.  XIII)  that  none  of  the  contracting 

"Aranda,  I.  109,  141,  143,  175,  176. 


UTI  POSSIDETIS  39 

parties  should  cede  or  pledge  any  part  of  its  territory 
or  permit  therein  any  foreign  establishment,  but : 

"This  stipulation  shall  not  prevent  the  ces- 
sions which  the  said  States  may  make  one  to 
the  other  to  regulate  their  geographical  demar- 
cations or  to  fix  natural  limits  to  their  terri- 
tories, or  to  determine  with  mutual  advantage 
their  boundaries."'* 

Guatemala,  Salvador,  Costa  Rica  and  Mexico  gave 
their  adhesion  to  this  treaty.  Besides,  on  November  9, 
in  the  same  year,  a  similar  agreement  was  concluded  by 
Mexico,  Guatemala,  Salvador,  Costa  Rica,  New  Gra- 
nada (Colombia),  Venezuela  and  Peru,  through  their 
plenipotentiaries  at  Washington.**^ 

Nov.  14, 1864,  on  the  invitation  of  the  Peruvian  Gov- 
ernment, a  Congress,  composed  of  representatives  of 
Chile,  Salvador,  Venezuela,  Colombia,  Ecuador,  Peru, 
and  Bolivia,  met  at  Lima.  An  envoy  from  the  Argentine 
Republic  was  present,  but  without  authority  to  sign 
anything.  During  the  Congress,  the  conflict  between 
Peru  and  Spain  over  the  Chincha  islands  took  place. 
Although  various  topics  were  embraced  in  the  invita- 
tion, there  were  adopted  (Jan.  23,  1865)  only  two  con- 
ventions: one,  of  "Union  and  Defensive  Alliance"; 
the  other,  on  the  "Maintenance  of  Peace."  The 
former  contained  an  article  (IX)  like  Art.  XIII  of 
the  Continental  Treaty  of  1856.«o 

It  is  true  that  Peru  has  on  certain  occasions,  one  of 
which  seems  to  have  been  as  early  as  1853,  invoked 
"the  principle  of  uti  possidetis  of  1810"  against  a 

"Aranda,  I.  232. 

"  Alvarez,  Le  Droit  Int.  Americain,  55-57. 

*•  Alvarez,  Le  Droit  Int.  Americain.  58-59 ;  Aranda,  T.  423. 


40  MEMORANDUM 

government  that  professed  to  maintain  it.  Notably 
was  this  the  case  when,  in  the  closing  days  of  the  War 
of  the  Pacific,  the  representative  of  Peru,  together 
with  the  representatives  of  certain  other  Spanish- 
American  countries,  including  those  of  Salvador  and 
Santo  Domingo  but  not  that  of  Chile,  signed  at  Cara- 
cas, on  August  14, 1823,  Bolivar's  birthday,  a  protocol, 
* '  semi-officially  agreed  to  ad  referendum/'  declaring  the 
"duty"  of  upholding  the  integrity  of  territories  ''in 
conformity  with  the  principle  of  uti  possidetis  in  1810" 
and  ''the  obligation  of  ignoring  the  so-called  Right  of 
Conquest." 

4.  The  ''Uti  Possidetis  Juris  .of  1810." 

To  the  phrase  "uti  possidetis,"  in  connection  with 
the  year  1810,  there  is  occasionally  added  the  word 
"juris."  The  term  "uti  possidetis  of  1810,"  says  a 
South  American  publicist,  "is  generally  understood  to 
mean  the  territories  which  the  respective  countries  had 
the  right  to  possess  according  to  the  Spanish  adminis- 
trative divisions  obtaining  at  that  date";^^  and,  reserv- 
ing always  the  question  of  date,  it  may  be  remarked 
that  the  insertion  of  the  word  "juris,"  with  a  view 
to  emphasize  the  idea  of  the  right  to  possess,''-  and  to 
divest  the  phrase  "uti  possidetis"  of  its  warlike  as- 
sociations, appears  to  require  no  comment.  No  nation, 
unless  under  stress  of  war,  when  the  right  of  conquest 
arises,  will  admit  bare  possession,  without  regard  to 
the  nature  of  its  origin  or  the  time  and  circumstances 
of  its  duration,  as  a  source  of  title.  As  has  heretofore 
been  pointed  out,  the  principle  of  uti  possidetis,  when 

"  Alvarez,  American  Problems  of  Int.  Law,  22. 
"Alvarez,  Le  Droit  Int.  Americain,  65. 


UTI  POSSIDETIS  41 

invoked  for  the  amicable  definition  of  international 
boundaries,  is  not  understood  in  so  severe  and  sum- 
mary a  sense.  Nor  does  the  principle,  as  often  seems  to 
be  supposed,  acquire  in  Spanish-America  a  special 
juristic  significance,  by  reason  of  the  fact  that  it  is  in- 
voked there  by  nations  formerly  subject  to  the  same 
sovereign.  Such  a  condition  is  not  peculiar  to  Span- 
ish-America. It  equally  exists  in  the  United  States,  the 
boimdaries  of  whose  original  States  were  founded  on 
British  grants  and  charters,  and  were  eventually  ad- 
justed on  the  strength  of  those  and  of  other  documents, 
imperial  and  colonial,  and  of  occupation,  prescription 
and  mutual  convenience.  No  one  thought  of  denying, 
as  a  general  principle,  the  force  of  imperial  acts  passed 
prior  to  the  Independence. 

Apart  from  the  usual  and  reasonable  interpretation 
above  defined,  the  phrase  "uti  possidetis  juris"  ia 
meaningless  and  self-contradictory.  To  say  that  the 
word  "juris"  excludes  altogether  the  consideration  of 
possession  de  facto,  is  to  make  the  words  self-destruo- 
tive.  The  judgment  of  *'uti  possidetis"  cannot  be 
predicated  of  a  situation  from  which  the  thought  of 
continued  physical  possession  is  wholly  excluded.  Such 
a  use  of  terms  would  be  purely  fanciful. 
*'  It  remained,  however,  for  the  eminent  and  ingenious 
advocates  of  Colombia,  in  the  arbitration  before  the 
President  of  France,  not  only  to  ascribe  to  Costa  Rica 
the  "uti  possidetis  juris  of  1810,"  but  to  give  to  it  a 
construction  as  novel  as  it  was  fantastic.  This  was 
that  boundaries,  as  between  the  political  divisions 
which  form  the  States  of  Spanish-America,  could  be 
determined  only  by  imperial  "laws"  promulgated  prior 
to  1810;  that  by  "laws"  could  be  understood  only  acts 


42  MEMORANDUM 

such  as  actually  were,  or,  coming  after  its  publication, 
were  proper  to  be,  included  in  the  Recopilacion  de  las 
Leyes  de  Indias;  and  that  all  capitulations,  official 
commissions,  reports  and  despatches,  and  all  occupa- 
tions, prescriptions  and  other  customary  proofs  of  the 
historic  evolution  of  right  and  title,  must  be  rejected 
as  incompetent  and  unavailing. 

To  the  dazzling  effect  of  this  startling  and  extra- 
ordinary thesis  there  probably  may  be  attributed  the 
award  to  Colombia  of  certain  islands  belonging,  not 
to  Costa  Rica,  but  to  Nicaragua.  But,  however  this 
may  be,  it  is  certain  that  the  thesis  was  destitute  of 
other  foundation  than  what  were  conceived  to  be  the 
necessities  of  Colombia's  case;  that  the  effect  of  its 
adoption  would  be  to  leave  the  countries  of  Spanish- 
America  for  the  most  part  without  any  basis  for  the 
fixing  of  their  limits ;  and  that  its  assumption  as  to  the 
state  or  rule  of  Spanish  law  prior  to  the  independence 
of  the  colonies  has  been  in  principle  repudiated  by 
two  awards  of  the  Government  of  Spain  itself,  ren- 
dered, respectively,  in  the  boundary  arbitration  be- 
tween Colombia  and  Venezuela  in  1891,  and  in  the 
boundary  arbitration  between  Honduras  and  Nicaragua 
in  1906. 

In  the  treaty  between  Colombia  and  Venezuela  of 
Sept.  14,  1881,  the  contracting  parties,  having,  as  they 
declared,  been  unable  "to  come  to  an  agreement  as  to 
their  respective  rights  or  uti  possidetis  juris  of  1810, '  * 
submitted  the  question  to  the  King  of  Spain,  it  being 
agreed  that  to  Venezuela  belonged  **all  the  territory 
appertaining  to  the  jurisdiction  of  the  ancient  Cap 
taincy-General  of  Caracas  by  Royal  Decrees  of  the  an 
cient  Sovereign  down  to  1810,*'  and  to  Colombia  ''all 


UTI   POSSIDETIS  43 

that  territory  which  by  similar  decrees  and  at  that 
date  belonged  to  the  Viceroyalty  of  Santa  Fe."  By 
a  protocol,  however,  signed  at  Paris,  February  15, 1886, 
his  powers  were  "amplified,"  and  he  was  authorized 
to  fix  the  line  * '  as  may  be  most  in  accordance  with  ex- 
isting documents  whenever  any  point  may  arise  about 
which  there  is  not  all  the  clearness  that  is  desirable." 
The  award  of  the  Queen  Regent  of  Spain,  rendered 
March  16,  1891,  treated  of  the  divisional  line  in  six 
sections,  as  to  the  second  and  fourth  of  which,  the 
parties  having  reached  an  accord,  no  further  action 
was  necessary.  As  to  the  first  and  third,  the  docu- 
ments were  found  to  be  in  agreement.  The  Royal  war- 
rant of  February  15,  1786,  creating  the  command  of 
Barinas,  which  was  invoked  as  the  basis  for  the  deter- 
mination of  the  fifth  section,  was  found  to  "give  rise  to 
doubts,"  so  that  the  arbitrator  was  obliged  here  to 
invoke  the  power  conferred  by  the  protocol  of  1886. 
For  convenience,  the  sixth  section  was  broken  into 
two  parts,  as  to  the  first  of  which  the  award  rested 
upon  a  royal  warrant  appointing  a  governor  for  the 
new  district  of  Cumana  in  1735;  a  despatch  of  this 
governor;  a  memorial  addressed  to  the  King  by  an- 
other governor  in  1743 ;  maps,  returns  of  population, 
and  official  correspondence  of  the  commander  of  the 
district;  a  report  of  the  head  of  the  Jesuit  Missions 
on  the  Orinoco  in  1749 ;  a  definition  of  the  territory  of 
the  Lieutenancy  of  the  Guayana,  by  a  person  who  was 
also  governor  of  Cumana,  in  1761;  a  despatch  of  the 
same  official  in  the  same  year;  a  draft  report  on  the 
boundary  of  the  Guayana  in  1760 ;  a  report  of  the  gov- 
ernor of  Caracas  in  1762;  maps  by  various  Spanish 
geographers  down  to  1796,  as  well  as  two  maps  of  later 


44  MEMORANDUM 

date ;  and  the  description  of  a  journey  made  by  order 
and  at  the  expense  of  the  Archbishop  and  Viceroy  of 
Santa  Fe  in  1782-1783.  These  documents,  it  was  de- 
clared, "clearly  fix  the  line  of  frontier  as  far  as  the 
laiv  is  concerned."  As  to  the  second  part  of  the  sixth 
section,  the  disputants  invoked  but  differently  inter- 
preted a  Royal  Warrant  of  May  5,  1768.  The  arbitra- 
tor pronounced  its  terms  ''not  so  clear  and  precise  as 
they  ought  to  be,"  and  again  invoked  the  protocol  of 
1886,  basing  the  award  in  this  part  on  the  following 
grounds : 

1.  That  Venezuela  was  "in  hona  fide  possession  of 
the  territories  to  the  west  of  the  Orinoco,  Casiquiare, 
Negro  Rivers,  which  form  the  boundaries  assigned  on 
this  side  to  the  Province  of  Guayana,  in  the  above- 
mentioned  Royal  Warrant  of  1768." 

2.  That  "Venezuelan  interests  are  largely  repre- 
sented in  the  aforesaid  territories,  encouraged  by  the 
confident  belief  that  they  were  established  in  the  do- 
minions of  the  United  States  of  Venezuela. ' ' 

3.  That  "the  Rivers  Atabapo  and  Negro  trace  a 
clear,  definite  and  natural  frontier,  with  only  one  break 
of  a  few  kilometres  from  Yavita  to  Pimichin,  thus  re- 
specting the  boundaries  of  these  two  villages." 

In  the  award  rendered  by  the  King  of  Spain,  Dec.  23, 
1906,  on  the  boundary  question  between  Honduras  and 
Nicaragua,  the  arbitrator  held  that  "the  Spanish  prov- 
inces of  Honduras  and  Nicaragua  were  formed  by 
historic  evolution,"  until,  by  virtue  of  the  Royal  Ordi- 
nance as  to  Intendants  of  Provinces  of  1786,  they  were 
constituted  as  two  distinct  Intendencias  of  the  Cap- 
taincy-General of  Guatemala;  that  "the  time  of  their 


UTI   POSSIDETIS  45 

emancipation  from  Spain"  was  *'1821";  that  a  Royal 
Cedula  aifecting  boundaries,  though  issued  prior  to 
the  independence,  might  be  treated  as  not  having  ef- 
fected any  change  where  it  was  tacitly  allowed  to  be 
or  was  in  fact  locally  disregarded;  that  the  exercise 
of  political  jurisdiction  in  a  positive  and  permanent 
manner  must  be  taken  into  account  in  fixing  the  limits; 
that  temporal  divisions  should  conform  to  the  spiritual, 
and  that  the  exercise  of  ecclesiastical  jurisdiction 
should  be  treated  as  proof  of  the  extent  of  temporal 
jurisdiction;  that  (as  the  treaty  itself  indicated)  nat- 
ural boundaries  should  be  preferred  to  artificial  ones ; 
that  the  appointments  of  colonial  governors,  the  com- 
munications of  local  colonial  authorities  to  the  home 
government,  and  even  the  published  writings  of  such 
authorities,  were  to  be  accepted  as  sources  of  authority 
for  the  demarcation  of  the  boundaries ;  that  diplomatic 
documents  of  the  independent  governments  concerned, 
and  even  the  statements  of  other  interested  govern- 
ments, were  likewise  to  be  received;  that  the  descrip- 
tions in  maps  and  geographies  and  books  of  travel, 
Spanish,  English,  French,  German  and  American 
(North  and  South),  examples  of  which  were  cited  from 
1571  to  1901,  were  also  to  be  consulted.  On  the  proofs 
thus  assembled,  the  divisional  line  was  awarded. 

VI.  Question  Between  Costa  Rica  and  Panama. 

In  the  treaty  of  Union,  League  and  Confederation 
Ijetween  the  United  Provinces  of  the  Centre  of  Ameri- 
ca and  the  Republic  of  Colombia,  predecessors  of 
Costa  Rica  and  Panama,  signed  at  Bogota,  March  15, 
1825,  to  which  the  present  controversy  runs  back,  it 
was  agreed: 


46  MEMORANDUM 

*  *  Article  V.  The  two  Contracting  Parties  mu- 
tually guarantee  the  integrity  of  their  respec- 
tive territories  against  the  attempts  and  incur- 
sions of  the  subjects  of  the  King  of  Spain  and 
his  adherents,  on  the  footing  on  which  they  ex- 
isted before  the  present  war  of  independence.'^ 

*' Article  VII.  The  United  Provinces  of  the 
Centre  of  America  and  the  Kepublic  of  Colombia 
formally  obligate  and  bind  themselves  to  re- 
spect their  boundaries  as  they  exist  at  present; 
reserving  to  themselves  to  settle  in  a  friendly 
manner,  by  means  of  a  special  convention,  the 
demarcation  of  the  divisional  line  between  the 
two  States,  so  soon  as  circumstances  permit,  or 
whenever  one  of  the  Parties  shall  manifest  to  the 
other  its  disposition  to  enter  into  such  negotia- 
tions. ' ' 

It  was  further  stipulated  (Art.  VIII)  that,  in  order 
to  facilitate  this  ** boundary  negotiation,'*  the  parties 
should  be  at  liberty  to  send  commissioners  to  "visit  all 
the  points  and  places  on  the  frontiers  and  prepare  such 
charts  as  they  may  deem  convenient  and  necessary  in 
order  to  establish  the  dividing  line." 

Meanwhile,  the  two  Governments  were  to  co-operate 
in  preventing  *'the  colonizations  of  unauthorized  ad- 
ventures in  that  part  of  the  coasts  of  Mosquitos  in- 
cluded between  Cape  Gracias  a  Dios  and  the  River 
Chagres,  *  *  *  without  having  first  obtained  the 
permission  of  the  Government  to  which  it  belongs  Id 
dominion  and  property." 

Upon  the  strength  of  this  treaty,  by  which  the  con- 
tracting parties,  while  reserving  the  definitive  settle- 
ment of  their  divisional  line  for  a  special  convention, 
merely  bound  themselves  *'to  respect  their  boundaries 
as  they  exist  at  present,"  the  ardent  and  unshrinking^ 


UTI   POSSIDETIS  47 

advocates  of  Colombia,  in  the  arbitration  before  th? 
President  of  France,  did  not  hesitate  to  affirm  that  the 
Central-American  Republic  not  only  had  accepted  the 
"Uti  possidetis  juris  of  1810,"  but  had  accepted  it  in 
the  fanciful  sense  in  which  they  themselves  in  1900 
sought  to  interpret  it.  The  simple  and  obvious  facts 
speak  for  themselves. 

Colombia  dates  her  independence  from  1810,  when 
the  movement  for  emancipation  began  in  that  quarter. 
The  Constitution  of  the  Republic  of  Colombia,  adopted 
at  Cucuta,  Aug.  30,  1821,  declared  (Title  II,  Section  1, 
Art.  VI)  that  the  territory  of  the  Republic  was  "the 
same  which  was  formerly  comprehended  in  the  Ancient 
Viceroyalty  of  New  Granada  and  the  Captaincy-Gen- 
eral of  Venezuela."  Precisely  the  same  clause,  with 
the  same  numbering,  appears  in  the  Constitution  of 
April  29,  1830.  The  Constitution  of  New  Granada  of 
April  20,  1843,  Venezuela  and  Ecuador  having  become 
independent  States,  declared  (Art.  VII) : 

''The  limits  of  the  territorj'-  of  the  Republic 
are  the  same  which  in  the  year  1810  divided  the 
territory  of  the  Viceroyalty  of  New  Granada 
from  that  of  the  Captaincies-General  of  Vene- 
zuela and  Guatemala,  and  from  that  of  the  Portu- 
guese possessions  in  Brazil;  and  *  *  • 
from  the  Republic  of  Ecuador." 

This  clause  is  repeated  (Art.  II)  in  the  Constitution 
of  New  Granada  of  May  22,  1858,  and,  the  name  of 
Colombia  having  been  resumed,  in  the  Constitution 
of  the  United  States  of  Colombia  of  May  8,  1863. 

Central  American  independence  dates  from  Sept.  15, 
1821,  when  it  was  declared  at  the  town  hall  in  Guate- 
mala City.    The  Constitution  of  the  Republic  of  the 


48  MEMORANDUM 

Centre  of  America  of  Nov.  22,  1824,  embracing  the  five 
States  of  Costa  Rica,  Nicaragua,  Honduras,  Salvador, 
and  Guatemala,  declared  (Tit.  I,  Sec.  II,  Art.  V)  sim- 
ply that  the  territory  of  the  Republic  was  '  *  that  which 
formerly  composed  the  ancient  Kingdom  of  Guate- 
ma'la,"  excepting,  for  the  time  being,  the  province  of 
Chiapas. 

In  the  Constitution  of  ''The  State  of  Costa  Rica," 
of  January  21,  1847,  there  may  be  found  (Chap.  IT, 
Section  I,  Art.  XXV)  a  somewhat  detailed  definition 
of  the  boundaries  on  all  sides,  embracing,  on  the  North, 
the  Atlantic  Ocean  from  the  mouth  of  the  San  Juan 
river  to  the  Escudo  de  Veragua,  and,  *'on  the  East, 
from  the  latter  point  to  the  River  Chiriqui."  In  the 
next  year  there  was  formed  the  Republic  of  Costa 
Rica,  and  in  its  constitution  it  was  declared  (Chap.  I, 
Sec.  4,  Art.  VII)  that  **the  limits  of  the  territory  of 
the  Republic  are  those  of  the  Uti  possidetis  of  1826." 
The  Constitution  of  Dec.  7,  1871,  (Tit.  I,  Art.  HI)  de- 
clares : 

"The  territory  of  the  Republic  '  *  *  is 
bounded  *  *  *  on  the  southeast,  by  Colom- 
bia, in  regard  to  which  the  uti  possidetis  of  1826 
shall  be  observed. '  '*' 

The  year  1826  is  the  date  of  the  exchange  of  the  rati- 
fications of  the  treaty  of  1825  with  Colombia,  the  ex- 
change having  been  made  at  Guatemala  City,  June  16, 
1826.«4 

In  the  exchange  of  the  ratifications,  two  changes 
were  on  motion  of  Central  America  incorporated  into 

"  Rodriguez,  American  Constitutions,  I.  326. 

**  Coleccion  de  los  Tratados  Internacionales  celebrados  por  la  Re- 
p'blica  de  Costa  Rica,  II.  10. 


UTI   POSSIDETIS  49 

the  treaty.  One  of  these  referred  to  the  powers  of 
the  proposed  General  Assembly  of  American  States. 
The  other  related  to  Art.  V,  above  quoted.  The  Cen- 
tral American  Congress,  in  approving  the  treaty, 
amended  that  Article  by  inserting,  before  the  word  **  ex- 
isted," the  word  *' naturally"  (naturalmente) ,  and 
transposing  the  last  clause,  so  as  to  make  the  clause 
read: 

**  Article  V.  The  two  Contracting  Parties  mu- 
tually guarantee  the  integrity  of  their  respec- 
tive territories  on  the  footing  on  which  they  nat- 
urally existed  before  the  present  war  of  inde- 
pendence, against  all  attempts  and  incursions  of 
the  subjects  of  the  King  of  Spain  and  his  adher- 
ents. ' ' 

The  amendment  evidently  refers  to  certain  nnfnrRl 
landmarks  that  had  in  colonial  times  been  recognized 
as  indicating  the  limits  of  the  political  divisions  which 
had  come  to  be  included  in  the  two  Republics. 

That  the  words  *' naturally  existing"  were  under- 
stood to  refer  to  natural  limits  is  shown  by  the  report 
of  Senor  Restrepo,  Secretary  for  Foreign  Affairs,  in 
his  report  to  the  Colombian  Congress,  March  21,  1827, 
in  which  he  said : 

''The  Ratifications  of  the  Treaty  of  Union, 
League,  and  Confederation,  between  Colombia 
and  Central  America  had  been  already  ex- 
changed, our  Minister  entrusted  with  this  Nego- 
tiation having  verified  the  same.  But  that  Gov- 
ernment having  altered,  in  the  Act  of  Ratifica- 
tion, the  meaning  of  the  5th  Article,  which  treats 
of  the  settlement  of  the  limits,  by  describing  them 
as  the  natural  limits ;  as  well  as  the  17th  Article, 
which  elected  the  American  Assembly  as  the 


50  MEMORANDUM 

Judge,  Arbitrator  and  Conciliator,  of  the  Dis- 
putes and  differences  between  the  Confederate 
States,  which  general  stipulation  was  restricted 
by  the  Republick  of  Central  America;  these  al- 
terations will  prevent  the  exact  observance  of 
the  Treaty.  I  shall  present  to  Congress  a  Copy 
of  the  said  Ratification,  for  its  consideration. '  ^^^ 

The  Congress  permitted  the  ratifications  to  stand. 
As  appears  by  numerous  treaty  stipulations  heretofore 
quoted,  the  countries  of  Spanish-America  deemed  it 
to  be  important,  not  only  for  reasons  of  future 
convenience  but  also  because  of  the  uncertainties  that 
prevailed  as  to  their  territorial  rights,  to  adopt  as  far 
as  possible  natural  boundary  lines.  That  this  thought 
existed  in  the  mind  of  Colombia  herself  in  1826  ap- 
pears by  the  report  of  Senor  Revenga,  Secretary  of 
State  for  Foreign  Affairs,  presented  to  the  national 
Congress  on  the  2nd  of  January  in  that  year.  Re- 
ferring in  that  report  to  the  subject  of  boundaries,  and 
to  the  instructions  which  had  been  given  in  respect  of 
Peru  to  seek  "the  most  convenient,  clear  and  natural 
frontiers,"  he  said: 

"The  same  object  has  been  kept  in  view  in 
regard  to  the  settling  of  our  boundaries  with 
the  Central  Republic,  and  the  same  will  be  at- 
tended to  in  defining  them  on  the  East  and  South- 
east of  Colombia,  Being  in  possession  of  such 
an  extent  of  territory  that  many  generations 
must  pass  away  before  its  population  can  be- 
come redundant,  it  appeared  prudent  to  make 
it  a  principal  consideration  to  provide  against 
cases  of  future  dispute."®® 

"  14  Br.  &  For.  State  Papers,  1139. 
"  13  Br.  &  For.  State  Papers,  1010-1011. 


UTI   POSSIDETIS  51 

By  the  treaty  between  Colombia  and  Peru,  signed 
Sept.  22,  1829,^^  the  parties  agreed  even  to  "cede"  to 
each  other  such  small  portions  of  territory  as  might 
be  ''necessary  to  fix  the  boundary  line  in  a  more  nat- 
ural and  precise  manner." 

It  is  obvious,  from  whatever  point  of  view  we  ap- 
proach the  subject,  that  the  Republic  of  Colombia  and 
the  Republic  of  the  Centre  of  America,  in  entering  into 
the  treaty  of  1825,  intended  nothing  more  than  the  de- 
marcation of  their  common  frontier  on  grounds  of 
right  and  of  convenience  such  as  have  usually  been  in- 
voked by  governments  everywhere  under  similar  con- 
ditions. 

New  York,  August,  1911. 

"  Supra,  p.  23. 


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